tv Book Discussion on Teaching Law CSPAN January 19, 2014 1:00pm-1:31pm EST
c-span2. we are on location at the georgetown university school of law here in washington d.c., where we are interviewing professors who are also authors. joining us now is professor robin west. her book, "teaching law," justice, politics and the demands of professionalism. here is the cover. professor west, what does it cost to go to law school today? >> guest: my word, it costs, let the summer between 122 mag $200,000. any of the students graduate with just that amount of debt or more once you figure in the cost of living. it can be a significant financial investment. not all law schools are that expensive of course. >> host: is it worth it? >> guest: i believe it is. however, it is clearly the case to law schools are graduating too many lawyers. too many jd graduates.
over the last few years, we have graduated somewhere around double the number of graduates as there are lot jobs that the economy can absorb. this has created a serious crisis offender employment and unemployment for recent law graduates. many are now competing with lawyers who have been squeezed out for unemployed for the last three or four years. this is the biggest crisis facing law schools right now. it is simply the number of graduates who have finished law school, who are on the market, who are unable to find nickel jobs. >> host: is the way law school teaching structure, is that the correct way in your view? ..
>> people who have too much money to qualify for legal aid but are not sufficiently wealthy to pay top dollar for top lawyers can have trouble finding lawyers, so this some ways the problem is in the market between middle class people who need lawyers for ordinary events in a lifetime; writing a will,
closing a housing sale, getting a divorce, negotiating a custody agreement with a warring spouse for the care of your children, etc. these are ordinary legal events that people in all economic spheres of life face. and many people have trouble finding lawyers to meet those needs. so the problem is not simply that there's an overabundance of lawyers, it's that we're graduating too many people who cannot simply move into pre-existing jobs, but who also cannot put together the resources and the skills necessary to go into a ordinary, sew row practice so as -- solo practice so as to service the needs of people who cannot afford firm prices. that's the overarching problem. >> host: is there a disconnect between legal scholarship and the practice of the law? >> guest: as felt by the practicing bar. judges and lawyers increasingly say legal scholarship is not serving the ends of
professionalism and not serving the ends of the legal profession. i'm not sure that's a problem. i don't know that it should be the goal of legal scholars or of legal scholarship to meet the immediate ends of professionals. to my mind, what legal scholars should be doing is taking a detached view of the law, of legal institutions and of the legal profession itself and subjecting it to rigorous inquiry. they should do so toward the end of trying to critique laws so as to, so as to further the ends of justice, asking questions about to what extent the laws that we have today actually do serve the ends of justice, and they should do so toward the end of increasing our societal knowledge about the legal system. they should, in other words, a scholar should, in other words, use scholarship to further both the ends of justice and the end of truth that's the traditional goal of the academy in which law schools today are situated. sometimes that scholarship will be of use to the practicing bar and to the bench, but sometimes
it won't be. sometimes the goals are more, are more farsighted than that. >> host: now, you're a law professor. what do you teach here at georgetown? >> guest: i teach contracts sometimes, i teach tort sometimes, ask i teach a number of seminars such as law and humanities, law and literature and jurisprudence seminars. >> host: have you practiced law? >> guest: i practiced very briefly after i graduated. >> host: and why just briefly? >> guest: oh, i knew, i knew halfway through law school that i wanted to teach. i did not go to law school with that goal in mind. i think it's still the case that most law students go to law schools intending to be lawyers, not intending to be law professors. and so like most of my peers, i decided on law teaching about halfway through law school. >> host: if you went out into the marketplace today, would you feel qualified to practice law? >> guest: no, i would not. >> host: why? >> guest: oh, because i have not, i have not studied law with
that goal in mind for many years, and i have not maintained skills with that goal in mind for many years. no, i am a legal academic. [laughter] before for the or for worse. i feel quite comfortable in that role. i don't think that these roles are easily interchangeable. not for most people. for many people they are. i have a number of colleagues here at georgetown, but a number of colleagues throughout the country who combine law teaching and legal scholarship and legal study with some sort of legal practice, usually appellate practice. but that's not the norm. the norm today really is a legal academic who is simply a scholar and a teacher. >> host: what's appellate practice? >> guest: arguing cases in front of appellate courts, in front of appellate courts rather than in front of trial courts. >> host: do you think, do you think it's necessary for you to know how to practice law? as a law scholar? >> guest: no. i think that law scholars have different areas of expertise.
law scholars should be masters of some aspect of the law, not necessarily some aspect of legal practice. there are a number of law scholars, of course, who are masters of some aspect of legal practice, and there's a profound need for those people, i think, in the legal academy. but i think it would be a shame if law schools took such a pivot toward creating what are now called practice-ready lawyers that the entire academy became, in effect, a vehicle for facilitating apprenticeships this law. that's not what law schools and what the legal academy has been for about the last hundred years, and it's not what it's set up to do. we would lose an awful lot of value if law schools abandoned their traditional, their now-traditional role of examining and criticizing law and legal institutions in the legal profession itself and instead refashioned itself
toward the end of simply preparing law students to be practice ready. there would be tremendous opportunity costs in doing that. >> host: what's one of the cases that you like to go to when teaching class? >> guest: oh, the cases that i most enjoy are the canonical first-year common law cases. i just think there's nothing more fun than teaching classes like hadley v -- >> host: what case is that? what are those cases? >> guest: oh, these are cases that you may recall -- did you go to law school? >> host: i did not. >> guest: oh, then you won't recall. [laughter] well, many contracts courses start out with a canonical case about a father and his son in the early part of the 20th century suing their family doctor. the son had had an industrial farm accident and had seriously injured his hand. the only remaining injury, though, was cosmetic.
it looked somewhat deformed. a surgeon promised the father and the son that surgeon could make the hand whole. the surgeon then proceeded to do the operation, and the hand came out much worse than it had been prior to the operation, and so the father and the son sued the surgeon for breach of that promise to make the hand whole. and the court had to grapple with the question whether the promise that the doctor had made was, was enough like the kind of promises made in commercial contexts so as to warrant the use of a finish of damages -- the use of a measure of damages that's really more appropriate for purely commercial contexts. and the court decided that it was, indeed, enough like a promise or a guarantee or a warranty that, say, a machine part would be well functioning to permit a measure of damages that gave the father and the son the full value of the promise, the full value of a healthy hand.
and then that required the court and then, ultimately, the trial jury to determine what the full value of a healthy hand would be. so those are, that's a example of a really interesting and fun case. that's also the case that the movie "the paper chase" starts out with. so if you've seen that, you may recall it from the movie. >> host: "teaching law: justice, politics and the demands of professionalism." you write in here that. critical legal scholars have complained for over 0 years thousand that main -- 30 years now that mainstream doctrinal scholarship is nothing but sin cofancy. academics pleading for nods of approval from father-figure judges. it is effectively dead, it has no passion, no sense of purpose and no large ideas to drive it. >> guest: well, i wrote a response to pierre. i don't agree with that view.
[laughter] but i understand where he's coming from. there is a worry at different times over the last 50 years of legal scholarship that scholars try too hard to produce scholarship that will fill the gaps in legal doctrine. and when that is the goal of legal scholarship, the legal scholar is, in effect, reasoning in exactly the same way a judge should reason when deciding a case which similarly falls within the gaps of existing rules. if that's what legal scholarship is, then scholarship is not going to be very deep cutting. it's not going to be very critical. and that was pierre's objection to the present trajectory and the present trends in legal scholarship, and i think there's something to that. legal scholarship was very self-confident in its role, i think, during the warren court years and the aftermath of the
warren court years when it seemed to both people in the academy and to many judges and lawyers that real problems with social justice could be addressed through the courts and through litigation and through supreme court reasoning. if we could just think our way through to correctly understanding these grand clauses of the constitution, we would actually create a more just society. so the courts and the academy were both engaged in this project, i think, of fashioning good and coherent and just policy but coming off of or coming from these foundational documents, the constitution, various civil rights acts, even the declaration of independence. and i think that what's happened over the last few years that led to complaints like pierre's is that that confidence has dwindled, has fallen away in some ways. so legal scholarship in a sense has lost its, has lost its sense
of robust engagement with the project of creating a just society. and to my mind, the solution to that is not to pull back from the project of legal scholarship, but to reengage even if that means to reengage in a more critical way and in a more deep-cutting way. the problems that we're facing right now, i think, are not problems that are going to be resolved through thinking more clearly about the equal protection clause of the 14th amendment or the due process clause of the 14th amendment. we do have to think thruways to use law and to use our legal institutions to solve these problems that are global and existential. but it's not going to happen through legal scholars making a small ask sort of -- and sort of modest suggestions for how to adjust haw at the margins. -- law at the margins. >> host: you also write: law schools offer an education
designed for a disfunctional and professionally-stunted conception of what it means to be a lawyer. >> guest: uh-huh. well, the required set of courses that law schools offer today is basically the same set of required courses that were offered in the 1990s, the 1950s, the 1930s and even in the 19-teens. well, the world has changed dramatically since then. the basic first-year set of courses -- criminal law, even constitutional law, torts, contracts -- legal educators settled on that set curriculum at a time in the history of law schools when that curriculum made a good deal of sense. most law at that time was common law. most law at that time was dearrived from this canonical
set of -- derived from this. most law was of that sort. and so to teach law students what it meant to be a lawyer in 1900, 1910 and even 1920 did mean in large part to teach them the skill of reasoning through these cases, a limited number of of cases, two hundred or three hundred cases would do it. well, that's not the nature of law today, and it's not the nature of legal practice today. most law today is not derived from a few hundred common law cases whether american or english cases. most law today is derived from statutes that are enacted by congress, that are enacted by state legislatures. so our focus in part simply has to shift away from the courts as the originator of law and to to instead our elected representative legislatures as the originator of law, another way of saying we just have to become less court focused and a little bit more legislation
focused in our orientation toward law. second, the curriculum that we still teach is the required first-year curriculum was put together at a time when most law was domestic. if you're going to become an american lawyer, you need to learn u.s. law and maybe some law of the state in which you intend to practice. these days i think it would be tantamount to pedagogical malpractice not to familiarize law students with institutions of international law both lick and private. public and private. that just wasn't on the agenda at the time when the 20th century legal curriculum was set. and there are some other differences and some other changes as well. i do also think that the law school, the law school curriculum that was set in the teens envisioned a kind of practice that was very learned and very bookish and, again, very set on the knowledge and
the reasoning skills that could be acquired through internalizing and really grappling with this set of common law cases. i think that today law schools can and should be more ambitious. lawyers need to know more than how i to reason through -- how to reason through some logical puzzles that follow from a few cases. lawyers, when they graduate from law school, i do think should be at least introduced to some of the challenges that are going to face them in practice beyond just the intellectual challenge of coming to grips with legal principles. on the other hand, law is really complicated and hard. and if we go too far toward the end of of inculcating skills and even inculcating values in students, we will be letting go of the goal of inculcating a large body of legal knowledge. and the main task of the law school has to remain that.
we have to educate students over a wide range of legal areas, and that requires teaching them an awful hot of law. and so the -- lot of law. and so the more resources we put into doing other things, the more we take away there that central task. >> host: robin west, if you could start a law school, how would you structure those three years, and would it be three years? >> guest: oh, i think it would be three years. i think that the reform suggestion that we cut to two is certainly well intentioned. it's aimed at trying to cut way back on the costs of legal education more law students which is a terrible rob these days. -- problem these days. but the problem is not that law school is too long. if anything, the problem is that law school is too short. there's an awful lot to teach and an awful lot to communicate in three years. i don't think it can be done in two. my ideal law school would be different there the current
model -- from the current model but not radically different. i do think the first year should be dedicated to teaching these required courses and teaching the required common law courses. i also think, though, that at least half of the first year should be dedicated to teaching required courses that focus on public law areas and on areas of law that are derived directly from statutory sources rather than areas of law derived from common law. that's the first year. in the second year, i think that law schools should and could strongly recommend to students a certain curriculum. right now law schools don't. the first year is required, the second and the third years are almost entirely or entirely elective. ask that leaves -- and that leaves students really floundering. it also doesn't reflect well on law schools. the curriculum that a law school requires or recommends is the law school's statement about what a lawyer should know and
what a lawyer should be and to some degree what the law should be. and by saying it's all up to you, just treat it as a menu and take whatever you want to take depending on what time you want to get up in the morning and what time your -- what your work schedule will permit, etc., is to say that the law school really has no view on that, no view of what lawyers should know beyond these required courses of the first year, much of which has now become marginal or irrelevant to most lawyers' practice areas. so i do think that we should include in the second year quite a few more either required or heavily recommended courses including things like corporate law which is not required anywhere that i know of but which is absolutely central to the way that law and resources are organized in this country for better or worse, tax law likewise is not required anywhere but certainly it ought to be. it's the one area, it's the one place where we do societally think about issues of social
justice and how we distribute resources. there's very few schools that actually require an international law course. and there are very few, if any, schools that i know of that require a course in basic theories of justice which i think should be required or at least heavily recommended everywhere. so in the second year, i would put a number of courses that reflect the school or the institution's view of what all lawyers should know. i call this a unitary view as opposed to a bifur be candidated view. -- bifurcated view. because i think that the law school can do this. the law school can, if the faculty think about it, just focus on it, articulate what it is that school thinks that the lawyer should know and then should require or recommend students take courses to fill out those, to meet that end. and then in the third year i would suggest that students focus this on a specialty -- focus in on a specialty if they've hit on one east through
their studies or through their summer employment, and then at some point in the third year also take some sort of experiencial course, what we call here a pact couple, that will at least introduce them to some of the challenges they will face in that area that they've chosen, and then the rest of the third year should be devoted to electives. students everywhere, i think, should take some course that introduces them to the interdisciplinary study of some area of law, either a law and social sciences class or a law and philosophy course or a law and humanities or law and economics, legal history, something to give them a broader cultural appreciation of how law fits into our, into our collective societal knowledge. so i would recommend that all students do some sort of law,
interdisciplinary legal studies course as well. but the main differences i would make would be to require or recommend courses in the second year and to some degree in the third year such that the school 's curriculum reflects a sense of what all lawyers should know and need to know. i would not depend on the school to fully train lawyers. that's a popular recommendation these days. i think that it's, i think that it's not well advised. i don't think it's what law schools can do very well right now, and if we refashion law schools so as to do that, we will be giving up an awful lot that's of value. i think it's a great service to the country and to future clients that we aim to educate lawyers and not simply train them. >> host: what's your solution to too many lawyers, as you say? >> guest: well, the law schools need to quit admitting so many law students, that's the obvious
solution to that problem. i mean, it's an obvious solution. it's taking people an awful long time to get there, but we are getting there. law schools are shrinking. i haven't looked at the numbers in a while, but i'm sure it's over half of law schools in this last admissions cycle took this fewer students than they did the prior year. and so that will address the problem over time. it may be that some schools will close. no school to date has closed, but that might be in the future. but whether or not that's the case, the law schools that remain for the most part have to start taking in fewer students. we can't keep graduating students knowing that a healthy percentage of them, a significant percentage of them are not going to be able to find jobs as lawyers. that's just unacceptable. it's unacceptable both as a financial model, but it's also unacceptable morally. and i think the law schools are coming to grips with this now and are taking some steps to correct it. shrinking your student body, of course, means that you have to find ways to shrink your costs.
because you're giving up a significant amount of revenue. and so that's the, i mean, that's the economic challenge facing law schools, is figuring out how to cover these costs with the less revenue. >> host: by fewer students, does that mean a more elite core of lawyers? >> guest: well, i don't think that it should. as you may know, other reformers have suggested splitting the legal academy into two discreet kinds of law schools, elite law schools that will follow this academic model that all law schools strive to follow now, and then sort of training law schools that will aim solely to train lawyers for practice which they claim can be run on a cheaper model just using non-tenure track professors. no need for a library, no scholarship, etc. that would create a very cleanly-bifurcated profession of elite lawyers on the one hand and everybody else on the other,
and i think that that would be very unfortunate. it would just be sad. there's no need for that. one of the virtues, i think, right now of the legal profession is that it's a unified profession. that there are, of course, lawyers at the very top of the income scale who are doing fantastically well for themselves, and it is pyramidical, and that's unfortunate. however, all lawyers by virtue of sharing in this common experience of a legal education have an awful lot in common with each other. finish that makes -- that makes the legal profession itself, i think, somewhat democratic. i think it also contributes, though, to our democracy, to our national democracy, that we have an ideal of what legal training should be and legal education should be that really is the same, largely the same for everyone regardless of income and regardless of family background, etc. so i don't want to give up on that. now, shrinking the law schools, i think, doesn't run the risk of
creating a more elite profession. what's created an elite profession so far has been this phenomenon of too many law schools that cost too much money to go, right? so increasingly it's only fairly well off people that can afford to go to law school. law schools have to do two things, we have to shrink, and we have to bring the tuition down. we have to bring the cost down. that's, that will counter this trend toward an elite profession and toward a profession that's too heavily tilted toward the wealthy. >> subtitle of "teaching law" is "justice, politics and the demands of professionalism." could you describe what you mean by that subtitle? >> guest: well, the book takes on those three topics in three substantive chapters. so in one chapter i argue that law schools have failed their students and failed the society by not centering on justice as a topic of call lahrship and as -- scl lahrship and as a topic of
teaching. we teach law, we teach next to nothing about what justice demands and requires of law. so we need to address that, and i think we need to change it. i think we can do that without radically upending law school as we know it. politics, likewise, for various reasons. law schools and law faculty have neglected to study what i call the political root of law. we study law as though it just sort of sprang from mushrooms or whatever. law, in fact, is the product of politics. and so i think we need to study politics. by not studying it, i think we contribute to the american tendency to denigrate politics. we, in other words, many law schools we tend to think -- and i think we tend to teach -- that law is the domain of the rational and the principled and the thoughtful while politics is the domain of the emotional and the sensemental and the mean spirited, etc. and this is not true of either
realm. but it's also, but it also fails to capture the connection between the two realms. so partly, again, this is simply a matter of asking law faculty to not be so court-centered in our teaching and to focus instead on the legislative root of most statutory law. but more generally, it's about thinking through a little bit more clearly the connections between law and politics and the, and the symbiotic relationship between the two realms. the demands of professionalism is what we've been talking about. we need to rethink the relationship between the legal academy and the legal profession in a way that, this a way that will serve -- in a way that will serve both. the legal academy, i think, is faulted -- and for the most part i agree with the criticism -- for not paying much attention to the legal profession and for not paying much attention to the professional needs of their, of the students, the future graduates. on the other hand, the legal academy, i think, can also